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From its office in Clayton, Missouri, Danna McKitrick, P.C., delivers legal representation to new and growing businesses, financial institutions, non-profit and government-related entities, business owners, individuals, and families throughout the greater St. Louis region and the Midwest.

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In agreeing to review Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the U.S. Supreme Court faced questions involving both constitutional protections for LGBTQ rights and the free exercise of religious beliefs. In the end, the Court followed the facts of this particular case, making a decision that was narrower than anticipated while still upholding both rights.

In 2012, a same-sex couple visited Masterpiece Cakeshop, a custom bakery in Colorado, to order a wedding cake. The shop’s owner, Jack Phillips, refused because of his religious opposition to same-sex marriages, saying that he would make any other kind of cake, such as a birthday cake. At the time, Colorado did not recognize same-sex marriages since the Court had not yet handed down Obergefell v. Hodges. The couple filed suit with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti–Discrimination Act (CADA). CADA makes it unlawful to discriminate in public accommodations or “place[s] of business engaged in any sales to the public and any place offering services … to the public.” (Colo. Rev. Stat. § 24–34–601(1) (2017)).The Commission determined there was probable cause that discrimination had occurred. Unwilling to ignore his religious beliefs, Phillips stopped selling wedding cakes altogether and his profits fell forty percent. Eventually, Phillips brought his lawsuit to the Supreme Court.

The Court faced two issues:

The authority of a State and its governmental entities to protect the rights and dignity of gay individuals, who are, or wish to be, married but who face discrimination when they seek goods or services; and

The right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.

Much of Phillips’ argument relied on his cake creations being a form of self-expression. Phillips argued that creating the wedding cake would be his endorsement of same-sex marriage contrary to his religious beliefs. In December, 2017, the Trump administration sided with Phillips, filing an amicus curiae brief stating,

“A custom wedding cake is not an ordinary baked good; its function is more communicative and artistic than utilitarian . . . Accordingly, the government may not enact content based laws commanding a speaker to engage in protected expression: An artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.”

Phillips argued that his bakeshop was not a service to the public, but an artistic expression which did not fall under CADA protections.

The Court, in a 7 to 2 opinion, focused on the commission’s response to the Masterpiece Cakeshop incident, ruling that the commission and the state must take a neutral and respectful approach to religious views in accordance with the Free Exercise Clause. The Court found elements of a clear and impermissible hostility toward the sincere religious beliefs held by Phillips, pointing to some commissioners’ seeming endorsement at the public hearings to the view that religious beliefs cannot be legitimately carried into the public or commercial sphere and disparaging Phillips’ faith as “rhetorical” and compared using his sincerely held religious beliefs to such beliefs used throughout history to defend slavery and the Holocaust.

The Supreme Court’s decision applies only to the particular facts of this case. Justice Kennedy concluded,

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

The decision did not invalidate CADA, nor did it diminish any LGBTQ rights. The American Civil Liberties Union, which represented the couple in court, found hope in the decision saying,

“The Court did not accept arguments that would have turned back the clock on equality by making our basic civil rights protections unenforceable, but reversed this case on concerns specific to facts here.”

While religious objections will continue to be protected, such objections may not allow business owners to deny certain people equal access to goods and services under a neutral public accommodations law.

Concluding Notes:

The opinion does not provide guidelines for employers in traversing the issues that may arise when religious beliefs conflict with civil rights statutes.

Employers must routinely review their employee manuals/handbooks to ensure that all employees’ religions are treated fairly and even-handedly.

Posted by Attorney Laura Gerdes Long. Long practices in tort, insurance defense, legal malpractice, health care, and employment law. Well-versed in employment law policies and processes related to HIPAA, she serves as a trainer and advisor to health care providers, insurers, self-insured employers, and municipalities. Jessica Gottsacker, law clerk, is a student at St. Louis University School of Law.